JAMES M. WOODWARD, PETITIONER V. UNITED STATES OF AMERICA
No. 89-344
In the Supreme Court of the United States
October Term, 1989
On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Federal Circuit
Brief for the United States in Opposition
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the United States Claims Court (Pet. App. 96a-115a)
is unreported. The opinion of the court of appeals (Pet. App. 1a-41a)
is reported at 871 F.2d 1068.
JURISDICTION
The judgment of the court of appeals was entered on March 29, 1989.
A petition for rehearing was denied on May 2, 1989. Pet. App.
116a-117a. On July 21, 1989, Justice White extended the time for
filing a petition for a writ of certiorari until August 30, 1989, and
the petition was filed on that date. This Court has jurisdiction
under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether the United States Navy acted constitutionally when it
released petitioner from active duty after he admitted that he was
homosexual.
STATEMENT
1. In June 1972, petitioner enlisted in the United States Naval
Reserve and entered the Naval Flight Officer Candidate Program. At
that time, he responded "yes" to a questionnaire that asked whether he
was sexually attracted to men or whether he desired sex with men. He
responded "no," however, to a question whether he had ever engaged in
homosexual conduct. Pet. App. 2a. Although Navy regulations
generally excluded homosexuals from military service (Pet. App. 2a
n.1), the Naval Reserve allowed petitioner to enter its flight
program. /1/
Petitioner completed flight school and was commissioned as an
ensign in the Naval Reserve. In 1974, while serving in an air
squadron stationed in the Philippines, petitioner went to the Subic
Bay Officer's Club with an enlisted man who was awaiting discharge
from the Navy for homosexual conduct. Pet. App. 3a. Because enlisted
personnel were not authorized to use the club, petitioner and his
guest were asked to leave. When petitioner was later questioned by
his commanding officer about the incident, he "admitted his homosexual
tendencies and stated that since he knew no 'gay' officers he had
sought the company of 'gay' enlisted men." Ibid.
Petitioner's commanding officer then asked him to resign. When
petitioner declined, the commanding officer recommended to the Chief
of Naval Personnel that petitioner be discharged under honorable
conditions. Pet. App. 3a, 47a. In September 1974, petitioner
submitted to the Chief of Naval Personnel a letter requesting that the
Navy retain him even though he was homosexual. Petitioner wrote (Pet.
App. 4a):
I am, and have been, since I became sexually aware, primarily
homosexually oriented. . . . I do, and will continue to,
associate with other homosexuals.
* * * *
I am well aware of the problems of social acceptance and
special problems of leadership with which I will be confronted
as my associates become aware of my homosexuality.
* * * *
For the good of both the Navy and myself, I respectfully
request the chance to contribute to the defense of the United
States as an honest, open, "gay" officer. I recommend that the
matter of my homosexuality be dropped as a matter of official
concern.
The Navy did not then discharge petitioner. In accordance with
standard Navy policy, however, the Navy reviewed whether petitioner
should be reassigned or released from active duty. Pet. App. 5a,
102a. The Navy later determined that petitioner should be released
from active duty and assigned to a reserve position, concluding that
(id, at 6a):
(petitioner) had acknowledged his homosexuality; his fitness
reports, which were prepared by (petitioner's) commanding
officer prior to (petitioner's) admission of homosexuality were
"far from outstanding," leaving him uncompetitive with other
reserve officers available for reassignment or release; and his
release would appropriately implement the Navy policy (at that
time) of reducing the number of reserve officers on active duty.
On October 22, 1974, the Navy released petitioner from active duty and
assigned him to the Naval Air Reserve Staff in San Diego, California.
Ibid. He served there until 1978, when the Navy discharged petitioner
after he completed his six-year military obligation. Id. at 7a.
2. a. In June 1976, petitioner brought suit in the United States
District Court for the District of Columbia and claimed that he had
been unlawfully separated from active duty. He sought back pay and
reinstatement to active duty in the Naval reserve. Pet. App. 7a.
After lengthy litigation, including two appeals, petitioner's action
was transferred to the Claims Court on the ground that the district
court lacked jurisdiction under 28 U.S.C. 1346 because petitioner's
back pay claim exceeded $10,000. Pet. App. 7a-8a.
In the Claims Court, petitioner challenged the lawfulness of his
separation from active duty on two grounds. Pet. App. 97a. First, he
contended that the Navy acted capriciously in failing adequately to
explain the reason for his separation. Second, he contended that the
Navy violated his rights under the First and Fifth Amendments because
it acted on the basis of his homosexuality.
The government argued that the decision to release a reservist from
active duty is committed to the unreviewable discretion of the
Secretary of the Navy. /2/ Alternatively, the government argued that
petitioner was permissibly released because of "his record, because of
a general reduction in force in effect at the time, (and) because of
his homosexuality." Pet. App. 98a.
b. The Claims Court rejected the government's argument that the
Secretary's decision to release a reservist from active duty is not
reviewable. Pet. App. 105a. The court acknowledged that 10 U.S.C.
681(a) confers "wide discretion" (Pet. App. 106a-107a) on the
Secretary, and that the judiciary is obliged to accord deference to
the Secretary's judgment regarding military personnel matters.
Nevertheless, the court ruled that it had jurisdiction under the
Tucker Act, 28 U.S.C. 1491, /3/ to consider the merits of petitioner's
claims. Pet. App. 107a.
The Claims Court assumed, without deciding, that petitioners
acknowledgement of homosexuality was constitutionally protected. It
then reviewed the Navy's decision to release petitioner from active
duty under the causation guidelines outlined in Mt. Healthy City
School Dist. Bd of Educ. v. Doyle, 429 U.S. 274 (1977). The court
found that the Navy showed by a preponderance of the evidence that it
would have reached the same decision without regard to the conduct
claimed to be constitutionally protected, because petitioner's
performance was below the level necessary for a reservist to be
retained on active duty. Pet. App. 109a-113a. Thus the Claims Court
granted the Navy's motion for summary judgment. Id. at 113a. /4/
3. The court of appeals affirmed the judgment on other grounds.
/5/ The court first found that the Claims Court's analysis under Mt.
Healthy was flawed because it "fail(ed) to take into account that
(petitioner's) file would not have reached the reviewing office (the
Chief of Naval Personnel) at all had he not been homosexual and
admitted it to his commanding officer." Pet. App. 23a. The Court
noted: "Only because of his homosexuality was (petitioner's file)
referred for review and it was, in part, the basis for his release
from active duty." Id. at 25a. /6/
In reviewing petitioner's constitutional claims, the court of
appeals noted that a serviceman's "constitutional rights must be
viewed in the light of the special circumstances and needs of the
armed forces." Pet. App. 40a (quoting Beller v. Middendorf, 632 F.2d
788, 810 (9th Cir. 1980), cert. denied, 452 U.S. 905 (1981)). The
court of appeals observed that the judiciary is obliged to give the
military "(s)pecial deference * * * when adjudicating matters
involving * * * decisions on discipline, morale, composition and the
like, and a court should not substitute its views for the 'considered
professional judgment' of the military." Pet. App. 39a-40a (quoting
Goldman v. Weinberger, 475 U.S. 503, 508 (1986)). The court
determined that those principles were particularly applicable here,
because "the Secretary (in 10 U.S.C. 681(a)) was given extremely broad
discretion by Congress to release a reserve officer from active duty
at any time, and the applicable regulations do not in any way limit
that discretion." Pet. App. 40a.
The court of appeals then rejected petitioner's contention that the
Navy's action violated the First Amendment because it was based on
petitioner's admission of homosexuality. The court wrote:
(Petitioner) does not seriously contend on appeal that his
statements are entitled to First Amendment protection. Because
(petitioner's) statements were made "for personal reasons and
not to inform the public of matters of general concern" they are
not entitled to First Amendment protection. * * * "Mere
publication does not clothe them with First Amendment
protection."
Pet. App. 11a n.2.
The court of appeals next held that petitioner's separation from
active duty did not violate the equal protection component of the
Fifth Amendment. /7/ First, the court ruled that the classification
challenged by petitioner -- a distinction based on homosexual "conduct
or behavior" (Pet. App. 36a) -- was not entitled to heightened
judicial scrutiny. Id. at 33a-37a. /8/ The court then held that the
Navy's classification passed constitutional muster because it was
rationally related to a permissible end:
The Navy's policy requiring discharge of those who engage in
homosexual conduct serves legitimate state interests which
include the maintenance of "discipline, good order and morale(,)
. . . mutual trust and confidence among service members, . . .
insur(ing) the integrity of the system of rank and command, . .
. recruit(ing) and retain(ing) members of the naval service . .
. and . . . prevent(ing) breaches of security." * * * We believe
that the policy requiring discharge for homosexual conduct is a
rational means of achieving those legitimate interests. * * *
The unique needs of the military, "a specialized society
separate from civilian society," * * * justify the Navy's
determination that homosexual conduct impairs its capacity to
carry out its mission.
Pet. App. 38a-39a (quoting Dronenburg v. Zech, 741 F.2d 1388, 1398
(D.C. Cir. 1984)). Accordingly, the court affirmed the judgment that
the Navy acted lawfully in separating petitioner from active duty.
ARGUMENT
The decision of the court of appeals is correct. In addition, the
decision does not conflict with any decision of this Court or of any
other court of appeals. Thus, no further review is warranted.
1. Petitioner first contends (Pet. 10-12) that the court of appeals
erred in finding petitioner "guilty of criminal homosexual acts." Id.
at 11. That contention is both misleading and without merit.
The court of appeals did not find that petitioner had engaged in
homosexual sodomy, which is a crime under the Uniform Code of Military
Justice. 10 U.S.C. 925. Rather, it ruled that the Navy's action was
based on more than petitioner's expression of an abstract sexual
preference -- i.e., that it had a behavioral component. See Pet. App.
26a n.6, 35a. The court of appeals' reading of the record was amply
supported. Petitioner's own statements showed that: (1) he was
homosexual (id. at 4a), (2) he was sexually attracted to or desired
sexual contact with other men (id. at 2a), (3) he sought out the
company of homosexual men (id. at 3a), and (4) he had homosexual
tendencies (ibid.). In addition, petitioner has, since 1972, declined
to assert that he has refrained from homosexual conduct (id. at 26a
n.6). Accordingly, the court of appeals' review of petitioner's
constitutional claims was not premised on a faulty view of the facts.
/9/
2. Petitioner next contends (Pet. 13-15) that the court of appeals
had an inadequate record to resolve his equal-protection claim. /10/
The court of appeals, however, correctly held (Pet. App. 38a) that the
Navy's regulations regarding homosexuals were rationally related to a
legitimate purpose.
The military has long and often explained the basis for its
regulations regarding homosexuals. Over seven years ago, the
Department of Defense issued a directive stating that the presence of
homosexuals in the military will
adversely affect() the ability of the Military Services to
maintain discipline, good order, and morale; to foster mutual
trust and confidence among servicemembers; to ensure the
integrity of the system of rank and command; to facilitate
assignment and worldwide deployment of servicemembers who
frequently must live and work under close conditions affording
minimal privacy; to recruit and retain members of the Military
Services; to maintain the public acceptability of military
service; and to prevent breaches of security.
Department of Defense Directive (DOD) No. 1332.14, at 1-9 to 1-10
(Jan. 28, 1982). Accord Navy Military Personnel Manual 36-42.
The Ninth Circuit in Beller v. Middledorf, 632 F.2d 788 (1980),
found those justifications to be sufficient to sustain as rational the
Navy's regulations pertaining to homosexuals. It stated:
The Navy can act to protect the fabric of military life, to
preserve the integrity of the recruiting process, to maintain
the discipline of personnel in active service, and to insure the
acceptance of the men and women in the military, who are
sometimes stationed in foreign countries with cultures different
from our own. The Navy, moreover, could conclude rationally
that toleration of homosexual conduct, as expressed in a less
broad prohibition, might be understood as tacit approval.
* * * * *
The Navy is concerned about tensions between known
homosexuals and other members who "despise/detest
homosexuality;" undue influence in various contexts caused by an
emotional relationship between two members; doubts concerning a
homosexual officer's ability to command the respect and trust of
the personnel he or she commands; and possible adverse impact
on recruiting. These concerns are especially serious, says the
Navy, where enlisted personnel must on occasion be in confined
situations for long periods.
* * * Despite the evidence that attitudes towards homosexual
conduct have changed among some groups in society, the Navy
could conclude that a substantial number of naval personnel have
feelings regarding homosexuality, based upon moral precepts
recognized by many in our society as legitimate, which would
create tensions and hostilities, and that these feelings might
undermine the ability of a homosexual to command the respect
necessary to perform supervisory duties. * * * (These) concerns
expressed by the Navy might not apply in any particular case,
but (they) do have some basis in fact. These considerations are
adequate to sustain the regulation in its military context.
632 F.2d at 811-812. /11/
Contrary to petitioner's suggestion (Pet. 13-15), the Navy was not
required to justify its regulations further by submitting factual
affidavits or scientific studies. That is clear from this Court's
decision in Goldman v. Weinberger, 475 U.S. 503 (1986), where the
Court rejected the contention that the Air Force was required to
submit empirical evidence to support the wisdom of its dress
regulations. The Court in Goldman stated: "The desirability of dress
regulations in the military is decided by the appropriate military
officials, and they are under no constitutional mandate to abandon
their considered professional judgment." Id. at 509.
3. Lastly, petitioner errs in asserting (Pet. 15-17) that this case
raises serious First Amendment concerns. The Navy separated
petitioner from active duty because, among other things, he said that
he was homosexual, he declared that he was attracted sexually or
desired sexual activity with other men, and he sought out the company
of homosexual enlisted men. Thus, the Navy reasonably concluded that
petitioner was likely to commit homosexual acts -- a practice that the
Navy believes is detrimental to its military mission. The court of
appeals correctly held (Pet. App. 11a-12a n.2), as has every court of
appeals that has considered the issue, /12/ that the military does not
violate the First Amendment when it takes action against a
servicemember who it reasonably believes has committed or is likely to
commit homosexual acts.
The Navy's regulations plainly do not penalize servicemembers for
engaging in protected First Amendment expression. As the Seventh
Circuit noted in Ben-Shalom v. Marsh, 881 F.2d 454 (1989), petitioner
is free under the regulation to say anything (he) pleases
about homosexuality and about the (Navy's) policy toward
homosexuality. (He) is free to advocate that the (Navy) should
change its stance; (he) is free to know and talk to homosexuals
if (he) wishes. What (he) cannot do, and remain in the (Navy),
is to declare (himself) to be a homosexual. Although that is,
in some sense speech, it is also an act of identification. And
it is the identity that makes (him) ineligible for military
service, not the speaking of it aloud.
Id. at 462. /13/
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
STUART M. GERSON
Assistant Attorney General
ANTHONY J. STEINMEYER
E. ROY HAWKENS
Attorneys
NOVEMBER 1989
/1/ Prior to 1981, Navy regulations made "discharge of known
homosexuals mandatory, subject only to a kind of (unreviewable)
executive discretion vested in the Secretary which is unrelated to the
fitness of any particular individual." Beller v. Middendorf, 632 F.2d
788, 802 (9th Cir. 1980), cert. denied, 452 U.S. 905 (1981).
Homosexuality, as defined by pre-1981 regulations, included "the
expressed desire, tendency, or proclivity toward (homosexual) acts
whether or not such acts are committed." Pet. App. 2a n.1. Homosexual
tendencies were considered to include any demonstrated "inclination,
propensity, or proclivity to a participation in a homosexual act."
Navy's Answers to Interrogatories at 3 (Woodward v. Moore, No. 76-1199
(D.D.C.)). In 1981, the Navy made homosexuality a non-waivable
disqualification for military service. See Navy Military Personnel
Manual 36-42; SECNAVINST No. 1920.6A, OP-130C3, at 2-3 (Nov. 21,
1983).
/2/ The Navy relied on 10 U.S.C. 681(a), which provides: "Except
as otherwise provided in this title, the Secretary concerned may at
any time release a Reserve under his jurisdiction from active duty."
/3/ Section 1491(a)(1) provides:
The United States Claims Court shall have jurisdiction to
render judgment upon any claim against the United States founded
either upon the Constitution, or any Act of Congress or any
regulation of an executive department, * * * or for liquidated
or unliquidated damages in cases not sounding in tort. * * *
/4/ In light of the court's holding that the Navy would have
separated petitioner from active duty even apart from his
homosexuality, the court did not address petitioner's claim that he
was entitled to an explanation of why he was denied the benefit of the
Navy's pre-1981 discretionary policy of retaining some homosexuals.
Pet. App. 113a.
/5/ As a threshold matter, the court held, relying on Webster v.
Doe, 108 S. Ct. 2047 (1988), that the Claims Court had jurisdiction
over petitioner's claim for damages resulting from allegedly
unconstitutional conduct.
/6/ The court, however, rejected petitioner's contention that he
should have been afforded the benefit of the Navy's pre-1981 practice
of retaining some homosexuals. The court stated: "(Petitioner) was
not discharged for homosexuality; rather he was considered for
reassignment, but because of his mediocre record as an officer and his
homosexuality he was ultimately released from active duty pursuant to
10 U.S.C. Section 681. Consequently, there is no inconsistency
between (petitioner's) treatment and the Navy's (pre-1981) practice of
considering some homosexuals for retention." Pet. App. 13a-14a n.3.
/7/ The court of appeals also rejected the claim that the Navy
violated petitioner's right to privacy. Pet. App. 25a-32a.
Petitioner does not challenge that ruling.
/8/ The court acknowledged (Pet. App. 26a n.6) that petitioner had
not admitted engaging in homosexual acts. Nevertheless, the court
noted that petitioner repeatedly admitted his homosexuality and "at
various times stated that 'he was attracted sexually to, or desired
sexual activity with, members of his own sex,' that 'since he knew no
"gay" officers he sought the company of "gay" enlisted men,' (and)
that he '(does), and will continue to, associated with other
homosexuals,' * * *." Ibid. The court also noted that petitioner had
declined to assert that he was celibate. Ibid. Under those
circumstances, the court had little difficulty concluding that Navy's
classification, as applied to petitioner, was "behavioral" in nature.
Id. at 35a.
/9/ The Seventh Circuit's recent discussion in Ben-Shalom v. Marsh,
881 F.2d 454, 464 (1989), is instructive:
It is true that actual (homosexual) conduct has not been
admitted by plaintiff on any particular occasion, and the
(military) has offered no evidence of such conduct. * * *
Plaintiff's (homosexual) acknowledgement, if not an admission of
its practice, at least can rationally and reasonably be viewed
as reliable evidence of a desire and propensity to engage in
homosexual conduct. Such an assumption cannot be said to be
without individual exceptions, but it is compelling evidence
that plaintiff has in the past and is likely to again engage in
such conduct. * * * The (military) need not shut its eyes to
the practical realities of this situation, nor be compelled to
engage in the sleuthing of soldiers' personal relationships for
evidence of homosexual conduct in order to enforce its ban on
homosexual acts, a ban not challenged here.
/10/ Petitioner apparently does not seek review of the court of
appeals' decision not to apply strict scrutiny to the Navy's action.
The court's refusal to accord heightened scrutiny to classifications
based on homosexuality is consistent with the decisions of every court
of appeals that has considered the issue.
See Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989); Gay
Veterans Ass'n, Inc. v. Secretary of Defense, 850 F.2d 764 (D.C. Cir.
1988); Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987); Baker v.
Wade, 769 F.2d 289 (5th Cir. 1985) (en banc), cert. denied, 478 U.S.
1022 (1986); Dronenburg v. Zech, 741 F.2d 1388 (D.C. 1984); Rich v.
Secretary of the Army, 735 F.2d 1220 (10th Cir. 1984); Beller v.
Middendorf, 632 F.2d 788 (9th Cir. 1980), cert. denied, 452 U.S. 905
(1981). Although a divided panel of the Ninth Circuit reached the
opposite conclusion in Watkins v. United States Army, 847 F.2d 1329
(1988), that decision was vacated upon rehearing en banc in Watkins v.
United States Army, 875 F.2d 699 (9th Cir. 1989). In this case, the
court of appeals relied on Bowers v. Hardwick, 478 U.S. 186 (1986), to
fortify its conclusion that the Navy's homosexual policy was not
subject to strict scrutiny. In Bowers, this Court held that "the
Federal Constitution (does not) confer() a fundamental right upon
homosexuals to engage in sodomy." Id. at 190.
/11/ In light of those well-established and longstanding
considerations underlying the Navy's regulations, petitioner clearly
errs in contending (Pet. 15) that "(t)he Federal Circuit improperly
decided (petitioner's constitutional) claim(s) in a vacuum, absent any
evidence of interests served by the Navy's action."
/12/ Ben-Shalom v. Marsh, 881 F.2d 454, 458-462 (7th Cir. 1989);
Rich v. Secretary of the Army, 735 F.2d 1220, 1229 (10th Cir. 1984).
Accord Hatheway v. Secretary of the Army, 641 F.2d 1376, 1383-1384
(9th Cir.), cert. denied, 454 U.S. 864 (1981).
/13/ Petitioner's non-constitutional claim (Pet. 17-18) is
insubstantial. Petitioner incorrectly asserts (Pet. 18) that the
"court failed to require the Navy to articulate its retention criteria
and apply them to (petitioner's) case." The Navy's policy regarding
service by homosexuals is a matter of record. See Pet. App. 2a n.1;
note 1, supra. Moreover, as the court of appeals correctly found
(Pet. App. 13a-14a n.3), there was no inconsistency between the Navy's
treatment of petitioner and its pre-1981 practice of allowing some
homosexuals to remain in the Navy.